United States v. Cannon

POWERS, J.

concurring.

Although I agree with tho majority of the court in the construction of the word “cohabit,” as used in the “Ed-munds Act,” so-called,?jand also in the result reached, I am unable to concur in the conclusion that there is no error in the record and I have, therefore, deemed it proper to express my views as to the whole case.

*141The indictment charged that tlie defendant “Angus M. Cannon, late of said district, the third, in the territory aforesaid, to-wit: on the first day'of June, in the year of our Lord, one thousand eight hundred and eighty-two, and on divers other days, and continuously between the first day of June, A. I). 1882, and the first day of February, A: D.' 1885, at the county of Salt Lake and territory of Utah, did unlawfully cohabit with more than one woman, to-wit: one Amanda Cannon, and one Clara C. Mason, sometimes known as Clara C. Cannon, against the form of the statute of the United States in such case made and provided, and against the peace and dignity of the same.”

The main controversy arises over the construction of the word “cohabit.” The prosecution contend that it means to dwell together as husband and wife; that it does not necessarily include intercourse between the sexes, and that the law clearly distinguishes “matrimonial cohabitation” from “matrimonial intercourse.”

Upon the part of the defendant, it is contended that' all cohabitation which the law deals with is sexual cohabitation; that the word, as used, means a dwelling together by male and female adult persons, in the intimacy of husband and wife, and that sexual intercourse is necessarily implied.

Eminent counsel have argued the case with marked ability, and its importance, not only to the defendant, but also to the people, demands that it should receive the most careful consideration of this court.

I. In order to correctly understand what is meant by the statute when it says, “if any male person in a territory . . . hereafter cohabits with more than one woman, he shall be deemed guilty of a misdemeanor,” let us endeavor to ascertain what was the object that Congress had in view in the passage of the act, which was the evil it sought to remedy, and what was the mischief it aimed to suppress.

If we consider the evident purpose of the “Edmunds Act,” and view it in the light of the exigency which caused its enactment, the conclusion seems inevitable that its purpose and intent is to protect monogamic marriage. *142It does iiot appear tliat its aim is to punish mere sexual crimes. This seems to have been tlio view taken by Congress:- See Congressional Record, March 15,1882, p. 34; but, however that may be, it seems to be the view that is supported by reason and authority.

Marriage, as understood in Christendom, means the “voluntary union of one man and one woman, to the exclusion of others.” The term, therefore, is not correctly applied to the union of one man with more than one woman: Story on Conflict of Laws, 8 ed., 184, note. It is the parent and not the child of society, for it is the very basis of the whole fabric of civilized society: Story on Conflict of Laws, 185. It is something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation and extent of obligation, different from what belongs to ordinary contracts: Story, 185. No legislation can be supposed more wholesome and necessary, in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the union, than that which seeks to establish it upon the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement: Murphy v. Ramsay, 114 U. S. 45. Marriage is the foundation of the home, and upon it is builded the entire superstructure of society. It finds its defense in every human heart, which jealously guards the one object of its affection. It is the outgrowth of progress and enlightenment, for it recognizes that the wife and mother is the equal of the husband and father.

There is far more to the marriage relation than the mere-gratification of passion, or the procreation of children. The wife, taking her place by her husband’s side, his equal, his counselor, his friend, makes of him a perfect man. Together they share the sorrows of life; together *143they enjoy its blessings. When each is true to tbe other, they present a union not made by man, and, as they pass along life’s pathway, their very example is of infinite benefit to mankind. Anything which tends to bring this relation into disrepute is an injury to the world. Anything which lowers the popular appreciation of the relation and destroys the good that marriage does the world by mere example, is an evil which the law should correct.

Society, with all its ramifications, being founded upon marriage, it is upon grounds of public jiolicy that it is regulated and protected. When the act in question was passed, Congress was aware that in some of the territories there are people who believe that it is right for a man to take and live with more than one wife; that there are men who not only marry more than one woman, but who say to the world, by conduct and by words, that two or more women with whom they are living are their wives. The law-making power saw that the mere fact of .a plural marriage is an evil example; that the living and associating with two or more women as if married to all tends to weaken the popular appreciation • of true marriage, and this is detrimental to society. Therefore, for the purpose of protecting the marriage relation, the law under discussion was passed. It is directly aimed at the suppression of polygamy and the polygamous household as an evil example, dangerous in its tendency to the family relation as recognized by this nation. It was not the offense against chastity merely, but the offense against the family, which Congress intended to suppress. To accomplish its object, the law has several provisions. It provides for the punishment of offenders by the courts, and by restricting their political privileges. It will be necessary to refer to two or three of its sections.

“Seo. 1. Every person who has a husband or wife living who, in a territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman, in a territory or other place over which the United States have exclusive jurisdiction, is guilty of *144polygamy, and sliall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section shall not extend to any person by reason of any former marriage, whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead, nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court, on the ground of nullity of the marriage contract.”

Under this section, “the crime of bigamy or polygamy consists in entering into a bigamous or polygamous marriage. Continuing- to live in that state afterwards is not an offense, although,” as we shall see later on, “cohabitation with more than one woman is:” Murphy v. Ramsay, 114 U. S. 42, 43. As will be seen from the construction placed upon this section by the supreme court of the United States, and quoted above, it is the fact of marriage with two or more persons that constitutes the offense. It is plain that the first section of the act deals simply with the marriage relation. -This section does not punish offenders for cohabitation or sexual intercourse, but for entering into a bigamous or polygamous marriage: Ibid. Proof of the marriage is all that is essential.

The third section of the act reads as follows:

“Seo. 8. That if any male person, in a territory or other-place over which the United States have exclusive jurisdiction, hereafter cohabits with more than one woman, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than three hundred dollars, or by imprisonment for not more than six months, or by both said punishments, in the discretion of the court.”

When these two sections are read together they seem plain. One makes the fact of marriage an offense, without reference to cohabitation or sexual intercourse. The other makes- unlawful the cohabitation, or appearance of marriage. Previous to the act becoming a law, many had contracted bigamous or polygamous marriages and were living with their wives. The object of the third section *145obviously is to put an end to polygamous establishments. It was designed to meet cases which the first section could 'not. Many prosecutions for polygamy might be barred by the lapse of three years, by Section 1,044 of the Revised Statutes of the United States, and yet a man might be living with more than one woman as a husband lives with his wife, and by his example be doing the public positive injury. The fact whether he does or does not have sexual intercourse with the women with whom he is associating as a husband associates with his wife, is a matter of but little moment when compared with the greater wrong done to society.

Another section of the statute I quote:

“Seo. 7. That the issue of bigamous or polygamous marriages, known as Mormon marriages, in cases in which such marriages have been solemnized according to the ceremonies of the Mormon sect, in any territory of the United States, and such issue shall have been born before the first day of January, A. D. 1883, are hereby legitimated.”

Thus, by these provisions, Congress says, in substance, there must be no more plural marriages. The children born or begotten at the time of the passage of the act, are legitimate, but hereafter they are illegitimate; and no male person can live with more than one woman as -his wife. It would seem that the word “cohabit” implies or means no more than the outward appearance of a living with two or more women as a husband lives with his wife.

If this is so, then the prosecution, in order to make out ■a case, are not required to satisfy the jury that the parties indulge in sexual intercourse. Neither would it be a defense for a man accused of unlawful cohabitation to prove that he did not indulge in sexual intercourse with the women whom he held out to the world as his wives, or, in other words, with whom he cohabits.

II. The defendant claims that there are two defects in in the indictment.

1. That it fails to show that the defendant is a “male person.”

2. The indictment does not allege that the defendant *146put forth any pretense of marital relation to the women therein mentioned.

I agree with my brethren, that the indictment is sufficient. The sex is sufficiently shown, if that is necessary, by the name Angus. I think it would not mislead the defendant, and it is not claimed that he is not the man named. The precise words of a statute need not be followed in order to make an indictment valid.

The indictment follows the language of the act in describing the offense. This seems to be sufficient, particularly in statutory misdemeanors, and it may be laid down as a general rule to which there are few exception: State v. Rust, 35 N. H. 438; U. S. v. Mills, 7 Pet. 138, 432; U. S. v. Gooding, 12 Wheat. 460, 281; 1 Wharton Cr. Law, section 364; Romp v. State, 3 Greene, Iowa, 276; Chambers v. People, 4 Scam. 451; State v. Kegan, 22 Mo. 459; State v. Mitchell, 6 Mo. 147; Simmons v. State, 12 Mo. 268; Whiting v. State, 14 Conn. 487; People v. Colton, 1 Utah 457; People v. Thompson, 4 Cal. 238; People v. Savier, 14 Cal. 29; People v. Martin, 32 Cal. 91; People v. Cronin, 34 Cal. 191, 208. Besides, the defendant failed to demur specially, and, if there was any defect, it was waived: Crim. Prac. Act, section 200. But there does not appear to be any defect, as the indictment clearly meets the requirements of the Criminal Practice Act: See Cr. Prac. Act, section 158.

III. On the trial, Clara C. Cannon was sworn as a witness for the prosecution, She testified as follows: “I know the defendant. I have been his wife. I was married to him about ten years ago, and have since lived at 246 First South street, Salt Lake City. * I live there now, and have -lived in the same house since shortly after I was married. The defendant has lived in the same house part of the time, and in the same house during the past three years. I have one living child, which was the child of that marriage, born January 11, 1882. I have had two other children by that marriage, both born before the living one. In this house I occupied two rooms on the ground floor— a parlor, and a dining room, on the east side. My kitchen is back, not attached to my part of the house. I have oc*147cupied this part of the ground floor since I first went to live in the honse. There is a hall running through the house on the ground floor, and the rooms I occupy on that floor are on the east side of the hall. I know Amanda C. Cannon. She has lived in the same house that I live in during the past three years. She has occupied, on the ground floor, two rooms on the west side of the hall, beside her kitchen, which is attached to the back of the main building, and is not the kitchen I use. I suppose Amanda 'Cannon is defendant’s wife. I have heard him speak of her as his wife, as Mrs. Cannon, and she has lived in the same house ever since I went to live there. She has nine children, I think. During the past three years, I think, all her children have been living there at home, but not all the time. My child lives with me, in my part of the house — I mean the child of this marriage. The children of Amanda Cannon live with her in her part of the house. During the past three years, and prior to the month of February in this year, the defendant has been in the habit of taking his meals with me, in my part of the house, a portion of the time, about one-third of the time. There were stated intervals; he took his meals with me every third day — with me and my children. I have a son and a daughter, grown up, and two orphan children. He took his meals with me and the child of this marriage, and the other children, every third day. He took his meals with Amanda Cannon and her family one-tliird of the time. He took all three of his meals with me every third day — on week days, and on Sunday morning he had breakfast at my house--that is, he took his meals with me two days of each week, and also his breakfast Sunday morning, which made one-third of the time. On Sunday he took his dinner at Sarah’s, and his supper at Amanda’s. There are four rooms on the second floor of the house, used as bedrooms, and a hall, with two of the rooms on either side of it. The rooms open into the hall. During the past three years, I have occupied the bedroom in the northeast corner, and Amanda has occupied the one in the southwest corner of the house. The defendant has occupied the bedroom in the southeast corner. The room oc-*148cnpied by me as a bedroom, and tbe one occupied by defendant as a bedroom, are on tbe same side of tbe ball, and there is no intervening room.”

On cross-examination, tbe witness was asked by counsel for defendant several questions, tbe purpose being, as stated, as “tending to show, witb otlier evidence to be given, non-access during tbe time charged in tbe indictment, and as tending to disprove any presumption of sexual intercourse which might be raised by the testimony of the witness.”

The prosecution objected to each question, on tbe ground that it was immaterial, irrelevant and incompetent. The court sustained tbe objection and defendant excepted.

I think there can be no question but that this testimony was admissible. True, the fact that the defendant did not have intercourse with these women would not be a defense, but in view of the evidence elicited by the prosecution, it became proper. The court in his charge could have instructed tbe jury as to tbe weight to be given to this evidence. We must remember that these questions were asked in cross-examination, and that great latitude is allowed. We must bear in mind, also, that tbe prosecution had shown, on the direct examination, that the defendant occupied a bedroom adjoining that of tbe witness, there being no intervening room. The evident purpose of the prosecution in eliciting this testimony was to enable the jury to infer that the parties enjoyed sexual intercourse. That is the natural inference that would be drawn from such testimony, and the defense were entitled to rebut it. That the prosecution understood that such an inference would be readily drawn is shown by their brief in tbe Musser case — a similar case to this, and argued at tbe same time. In that brief, speaking of the proof showing-cohabitation, it is said: “His, Musser’s, bedroom is between tbe bed-chambers of the women, and open doors afford ready and easy access to the marriage beds.” It is plain that the testimony is open to the inference that I have drawn from it.

On cross-examination, anything; that will explain, modi,*149fy, or cut clown tlie testimony drawn out on the direct is proper. “A party always has the right to call out on cross-examination any fact within the knowledge of the witness, which has a tendency to affect or qualify the evidence he has given in chief, whether it points to the same circumstances about which he testified or not. A more restricted rule renders cross-examination in many cases nearly valueless, and enables a party by careful questions to his witness to give to the jury a one-sided and partial view of the facts within the knowledge of the witness, and effectually to preclude .the opposite party from supplementing the witness’ statement, with the further facts within his knowledge concerning the same transaction, unless he shall make the witness his own, in which case he is supposed to vouch for him as credible, and has also a less privilege of searching examination:” Det. & M. R. R. Co. v. Van Steinberg, 17 Mich. 100.

IY. With regard to the charge of the court, the error lies not so much in what the judge did say as in his failure to say what he ought. This casé belongs to a class that creates great public interest. Men have strong prejudices, and are prone to follow their prejudices, whether they are fully borne out by testimony or not. Therefore, a court, which should always be fair, always be calm, and, no matter what the public may demand, should always mete out impartial and even-handed justice, should carefully throw about a defendant the safeguards to which the law says he is entitled. The charge to the jury was remarkably brief. It was as follows:

“The indictment in this case charges that the defendant, on the first day of June, in the year of our Lord 1882, and on divers other days continuously between said first day of Juno, 1882, and the first day of February, 1885, did unlawfully cohabit with more than one woman, to-wit: One Amanda Cannon and one Clara C. Mason, sometimes known as Clara C. Cannon. If you believe from the evidence, gentlemen of the jury, beyond a reasonable doubt, that the defendant lived in the same house with Amanda Cannon and Clara C. Cannon, the women named in the indictment, and ate at their respective tables one-*150third of his time or thereabouts, and that he held them out to the world by his language or his conduct, or by both, as his wives, you should find him guilty.
“It is not necessary that the evidence should show that the defendant and these women, or either of them, occupied the same bed, or slept in the same room, neither is it necessary that the evidence should show that within the time mentioned, he had sexual intercourse with either of them.
“I will state, the law presumes the defendant innocent until proven guilty, beyond a reasonable doubt; that you are the judges of the credibility of the witnesses, the weight of the evidence and of the fact, and if you find the defendant guilty you will say in your verdict, ‘We, the jury, find the defendant guilty, in the manner and form as charged in the indictment;’ and if you find him not guilty you will say: We, the jury, find the defendant not guilty.’”

The foregoing comprises the entire charge from beginning to end.

The court should have informed the jury that this prosecution was brought under the provisions of the “Ed-munds act,” and they should have been informed when the act took effect. They should have been told that prior to the passage of that act, cohabitation was not an offense. The word “cohabit” should have been defined, and the jury instructed that unless they found, beyond a reasonable doubt, that the defendant had cohabited with the woman named in the indictment since the “Edmunds act” took effect, and within the time 'named in the indictment, they should acquit. The defendant requested instructions on all these points and they were refused. This refusal -was error, for it is the duty of the judge when requested, to instruct the. jury upon every point of law pertinent to the issues: People v. Taylor, 36 Cal., 255; Hayes v. Paul, 51 Penn. St., 134. A party has the right to have the jury instructed upon the law of the case clearly and pointedly, so as to leave no reasonable ground for misapprehension or mistake and it is error to refuse to instruct when requested, upon pioints pertinent to the issue: Muldouney v, Ill. Cent. R. Co., 32 Iowa, 176; Carpenter v. State, 43 *151Ind., 371; Morris v. Platt, 32 Conn., 75; Nels v. State, 2 Tex., 280.

As far as tbe evidence goes tbe judge should give any pertinent instructions asked for conformable to tbe law: State v. Wilson, 2 Scan., 225; Davis v. State. 10 Ga., 101.

He need not adopt tbe language of counsel asking tbe instruction; but if tbe form and substance is not objectionable it is better so to do: Bish. Crim. Pro., sec. 981.

Any explanation may be added, or of course any modification of its terms may be made: Lambeth v. State, 23 Miss., 322; Bish. Crim. Pro., sec. 981 and cases cited.

It is true tbat tbe court charged tbe jury that “tbe law presumes the defendant innocent until proven guilty beyond a reasonable doubt,” but tbe defendant was entitled to have them charged in tbe language of bis fifteenth and sixteenth instructions, which were as follows:

“15. Tbe law presumes innocence, and, therefore, tbat all persons who were cohabiting when tbe Edmunds law took effect, contrary to tbe provisions of tbat act, then ceased to do so.”
“16. No fact in tbe conduct of tbe defendant, subsequent to tbe passage of tbe Edmunds act, can be made, more significant of guilt in violating tbe section against cohabitation, by reason of tbe existence of tbe polygamous relation between him and tbe women mentioned in the indictment, prior to tbe passage of tbe statute.” A general abstract statement tbat tbe law presumes innocence is not equivalent to specific instruction tbat tbe law presumes innocence in a particular predicament shown by the evidence.

So, also, tbe last half of tbe thirteenth request should have been given. Tbat instruction was, “tbat all tbe defendants social familiarity with tbe mothers of such families, established prior to tbe passage of said act, not shown to include all tbe particulars of cohabitation, as tbe court has defined it, should be considered by tbe jury with tbe legal presumption of innocence, and tbe failure to establish such cohabitation would entitle the dafendant to acquittal.”

Evidence bad been introduced of matters occuring prior *152to tlie passage o£ tlie law. Tlie jury should, therefore, have been told that to find the defendant guilty, they must find that he had cohabited with the women named, within the time stated in the indictment. They were told that the defendant was charged with cohabiting with the women, between certain days; but they were not told that they must confine their investigation of his guilt or innocence to the proof of facts and circumstances occurring between those dates. On the contrary, they were at once informed that if they found beyond a reasonable doubt, that the defendant lived in the same house with the women, ate at their tables, and held them out to the world as his wives, they should find him guilty. More restriction should have been placed upon the investigations of the jury, for no act done prior to the passage of the act, can be made by that act, the basis of a criminal charge. Nor can subsequent legislation make a prior act conduce to a conviction, for it would then alter the situation of the defendant to his disadvantage: Kring v. Missouri, 107 U. S. 221; U. S. v. Hall, 2 Wash, 366.

I have pointed out the foregoing errors, in order that they may be avoided in future trials of like nature. I think, however, that in the present case they are errors without prejudice, for, after most mature and conscientious reflection, I am not convinced that they affected the result. All of the testimony taken upon the trial is brought up with the record. After carefully considering it in all its bearings, I am persuaded that it clearly shows the defendant to be guilty as charged in the indictment. I am convinced that the verdict of the jury would not have been different than it was, even had the errors not existed. I, therefore, concur in the conclusion of the court affirming the judgment of the court below.